OCRD loses state court case
On Tuesday, the Supreme Court of Ohio ruled in favor of the city of Oberlin in a suit brought by the advocacy group, Oberlin Citizens for Responsible Development. OCRD brought the suit two weeks ago, arguing that the city of Oberlin did not follow proper procedure while dealing with the petition to place a development agreement for the property on the Nov. 8 ballot as a referendum.
Representative members of OCRD were unavailable for comment.
“This is the outcome we were fairly certain we were going to get,” said Daniel Gardner, city council chairman. “As a council member, if I had had serious doubts that what we were doing was legal, I wouldn’t have done it.”
During the summer, OCRD had compiled petitions to repeal the already existing Wal-Mart development agreement and, instead, expose it on the Nov. 8th ballot as a referendum.
Once it was submitted to the city in August, Sal Talarico, the city’s Finance Director-Auditor, didn’t certify and submit the petitions to the Board of Elections based on the advice of the city Law Director, Eric Severs. This advice was based on two claims: the development agreement had been legitimately passed on emergency; and the development agreement constituted an administrative act and not a legislative one. Thereby it wasn’t subject to referendum.
OCRD filed for a writ of mandamus. This means that, had it been granted, Talarico would have been compelled to submit the referendum initiative and petition to the Board of Elections for validation to go on the ballot, based on the claim that it was his legal duty to do so. OCRD also wanted the city to pay for the legal fees.
To begin with, the court didn’t find OCRD to be legally entitled to a writ of mandamus. Even though procedurally speaking Talarico should have submitted the petition to the Board of Elections, the board would have ultimately been required to leave it off the ballot anyway. The submission would have been what is called a “vain act” and a writ of mandamus can’t compel a vain act.
The reason the Board would have been required to withhold the referendum was because it was, as Severs had noted, referring to an administrative act and not a legislative one.
Section 23 of the court decision read: “The test for determining whether the action...is legislative or administrative is whether the action taken is one enacting a law, ordinance or regulation [legislative], or executing or administering a law, ordinance or regulation already in existence [administrative].”
Since Oberlin city ordinances already require development agreements between the town and the people who want to build, this was simply executing an ordinance and not enacting one.
“This was housekeeping stuff,” said Gardner, unsurprised. “In my opinion, development agreements shouldn’t even appear on the city council agenda at all because it is simply putting down in legally binding terms that which the Planning Committee has already decided on.”
“We weren’t enacting new zoning laws,” agreed Severs. “We were simply carrying them out. Sometimes it’s a close call whether it’s a legislative or administrative act. In the case we had in Oberlin, it was not.”
Part of OCRD’s claim for a writ a mandamus was that the emergency passage of the development agreement was invalid. In section 33 of the decision the court responded to this claim:
“We need not address this claim, however, because the ruling that the enactment of the ordinance constituted an administrative action that cannot be repealed by initiative or referendum renders it moot.”
However, the court did see some validity in the claim that the way in which the petition was handled by Talarico was incorrect. The correct procedure would have been for him to submit the petitions to the Board of Elections for signature verification before ten days had elapsed. The decision claimed that “he abused his limited, discretionary authority” by refusing to certify the petitions because he judged that it was an administrative issue and not a legislative one. Although the court eventually agreed with this judgment, their point was that it was not for Talarico to make the call, but for the Board of Elections.
“I just wanted to do whatever was appropriate according to the law,” said Talarico. “I have no personal opinion on it. Our law director was right about it being an administrative act. If it had been legislative, I’m sure Eric [Severs] would have picked up on it and I would have done what was proper according to the law. That’s my job.
“Which way it went didn’t matter to me,” he concluded. “I’m just glad it’s resolved.”
“I was pleased with the decision,” said Severs. “It’s always good to have your legal advice reaffirmed, especially by the highest court in the state.”
Severs stands by his council in this case.
“If the Board of Elections had certified it to the ballot, the city of Oberlin probably would have filed for a writ of prohibition [to take it off the ballot] and we would have ended up in court anyway but probably weeks or a month later,” said Severs. “The ballots might have already been printed up and the city could have faced the cost of a special election.
“I understand what the court said,” continued Severs. “Next time, we’ll probably take that extra step. We have a roadmap from the Supreme Court for procedure in the future and that’s always instructive.”
What OCRD’s next move will be is unclear.
“I understand what OCRD wants which is a yes or no vote on whether or
not Wal-Mart comes to town,” concluded Gardner. “Fortunately or
unfortunately, that’s not the way the law works. If you have proper zoning
(which Wal-Mart did) and you comply with zoning and development regulations,
then by state law you’re allowed to build your building. Every development
agreement isn’t subject to an up or down vote by the populace.”